Scottish Court of Session Decisions

George Ludovic Houston, superior of certain subjects in the town of Johnstone, Renfrewshire, sued William Buchanan there for a casualty, being one year's rent of the subjects due upon the 1st October 1874, being the date of the commencement of the Conveyancing Act 1874. The rent for the year 1874–75 was not less than £80, 6s. The sum claimed as casualty was £65.

The subjects were feued out about the beginning of the present century by the pursuer's author, and came to belong to William Robertson, cotton-spinner, in Johnstone, who on 3rd June 1866 was entered with the superior by precept of clare constat in his favour of that date. The precept bore that he was then of full age, and he was in point of fact 34 years of age, having been born on 30th April 1872. Upon this precept Robertson was infeft, conform to instrument of sasine in his favour dated 19th July, and recorded in the Particular Register of Sasines for the county of Renfrew 17th September 1816. Robertson was the last-entered vassal in the subjects under the law as it stood prior to the passing of the Conveyancing (Scotland) Act 1874. He went to America about 1834 or 1835, and the pursuer averred that he died there in 1856, when the subjects fell into non-entry. The defender acquired the subjects by disposition in his favour, dated May and recorded on 19th May 1873. He was thus infeft in the subjects, and on 1st October 1874, by the operation of the Conveyancing (Scotland) Act, he was impliedly entered with the pursuer as vassal in them.

The defender averred that as the date of the death of the last-entered vassal was not stated, the year of infeftment must be taken as the date on which the casualty became payable, and he consigned £48 to meet the superior's claim.

After proof the Lord Ordinary ( ) upon 9th January 1892 pronounced this interlocutor:—“The Lord Ordinary having considered the cause, finds, decerns, and declares that in consequence of the death of William Robertson, cotton-spinner in Johnstone, who was the vassal last vest in all and whole the subjects described in the summons, a casualty, being one year's rent of the said subjects, became due to the pursuer as superior of the said subjects upon the 1st day of October 1874, being the date of the commencement of the Conveyancing (Scotland) Act 1874, and that the said casualty is still unpaid, and that the rents, maills, and duties of the said subjects, after the date of citation following upon the said summons, do belong to the pursuer as superior thereof, until the said casualty be otherwise paid to the pursuer; decerns and ordains the defender forthwith to make payment to the pursuer of the sum of £48, 1s. sterling, the rent of the said subjects, subject to the usual deductions, for the year from Whitsunday 1873 to Whitsunday 1874, being the year in which the defender must be held to have been duly entered with the pursuer as superior of the said subjects;finds no expenses due to or by either party, and decerns.”

The pursuer reclaimed, and argued—The year on which the casualty fell to be paid was 1874–1875. The defender was infeft in 1873, and impliedly entered by the statute in 1874. By the old law the date of entry was the date of the charter of confirmation granted by the superior, although the charter once granted operated retro to the date of the infeftment. The statute provided that after October 1874 the vassal's infeftment should be of the same effect as if the superior had granted to him a writ of confirmation. If the date of infeftment had been after October 1874, that would undoubtedly have been the date on which the casualty was to be reckoned, but the process was not complete without both the infeftment and the Act working together. The Act could not operate retro, therefore

Page: 437↓

the date when the infeftment and the Act came together was the date of the beginning of the Act. To read the Act otherwise would be to make a casualty due before the Act provided. Again, the reading contended for by the defender would have this result, that in the case of a mid-impediment the right to the property might be confirmed in some one who had not the real title. That was opposed to the principles of the law previous to the passing of the Act, and the Act was not meant to supersede the old law, but only to make it easier— Leith Heritages Company, 1876, 13 S.L.R. 731; Straiton Estate Company (Limited) v. Stephens, December 16, 1880, 8 R. 299; Sivwright v. Straiton Estate Company, July 8, 1879, 6 R. 1209; Campbell v. Stewarts, December 11, 1884, 22 S.L.R. 292; Steuart & Murdoch v. Rodger, June 6, 1882, 19 S.L.R. 649.

The respondent argued—The statute provided that every proprietor who at the date of the passing of the Act was infeft in the lands should be deemed and held to be impliedly entered with the superior “as at the date of registration of such infeftment.” The defender was infeft and infeftment registered in 1873; that must be taken to be the date of his entry with his superior, and not 1874. The Act operated retro not merely in the sense that a charter of confirmation did, in validating the title, but as making the date of infeftment the date of entry with the superior. The casualty payable was the rent for 1873–1874, and the Lord Ordinary was right. With regard to the difficulty raised on the other side as to the mid-impediment, it was enough to say that that would raise a difficulty between a disponer and disponee, while here the question was between superior and vassal. The implied infeftment by the Act extinguished the said superiority, so that the difficulty could not arise— Ferrier's Trustees v. Barclay, May 26, 1877, 4 R. 738.

At advising—